Regulatory: Bringing Canada to the digital age

With the Royal Assent of Bill C-11 on June 29, and the expected proclamation of most of its provisions, Canada joins a list of countries that recognize the importance and challenges of protecting copyright in the digital age. As digital technology has dramatically transformed the use and transmission of intellectual property through new and ever-changing technological means, revisions to Canadian copyright law were imperative, yet long overdue. The bill, with the short title Copyright Modernization Act(CMA), was the third attempt to modernize Canada’s Copyright Act, after two failed attempts in 2005 and 2008.

Aligning Canadian copyright law with international standards, the CMA ratifies two treaties of the World Intellectual Property Organization (WIPO): the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).Key amendments in this bill address issues confronted by copyright owners and creators trying to protect their rights in the digital age, while still balancing the right of users and consumers to have reasonable access to copyright materials. The CMA also provides additional recognition on the role played by digital intermediaries, such as Internet service providers (ISPs), in the dissemination of copyright works.

The CMA contains numerous and complex amendments, some of which are highlighted here.

Owners’ rights

The CMA increases a copyright holder’s rights in a digital environment. Copyright owners are now provided with the exclusive right to authorize or prohibit their works from being made available for dissemination on the Internet. Copyright holders of photographs and portraits benefit from new provisions recognizing that communication of a copyrighted work by telecommunication includes making such works available through interactive means. The CMA also grants exclusive rights to performers and makers of sound recordingsto make their recordings available to the public over the Internet and to sell or transfer ownership in physical recordings.

The new changes also grant performers the right to protect the integrity of recorded works and to have them attributed or not (typically known as “moral rights”). Under the CMA, photographers and painters are deemed to own copyright in commissioned works, in contrast to the previous copyright regime where the first copyright owner of a photograph or painting was deemed to be the person who commissioned the work unless the parties had entered into an agreement to the contrary.

Technical protection measures and anti-pirating measures

The CMA introduces provisions that prohibit the removal of, or tampering with, technical protection measures (TPMs, also commonly known as “digital locks”) and new measures that allow copyright holders to pursue IP “pirates.” TPMs may be built into digital music, DVDs, software, video games, websites with online subscription services and other media and technology products to protect the underlying work from unauthorized copying. The CMA attributes liability to persons who set up services to enable infringement of copyright materials or market or distribute TPM-circumvention tools such as digital lock-cracking software.

Other new anti-pirating measures in the CMA allow content owners to access data through ISPs, and to sue those who facilitate pirating, such as peer-to-peer file sharing sites.

Users’ rights

The CMA adds a number of provisions that recognize users’ rights as balanced against owners’ rights, including expanding the fair dealing exception for copyright infringement to allow for copyrighted materials to be used for educational purposes, parody or satire. The CMA also permits educational institutions, museums, libraries and archives, subject to limitations, to make and distribute electronic copies of course materials, books and other protected works.

In relation to TPMs, the CMA allows for certain exceptions to its anti-TPM circumvention provisions, including for the purposes of law enforcement and national security, preventing the collection or use of personal information, computer systems or network security and making works accessible to persons with perceptual disabilities.

Under the amendments, ISPs are not liable for infringement by their customers when performing services relating to the operation of their sites, such as caching. ISPs are also required to implement a “notice and notice” regime, where the copyright holder may send notice of alleged infringement to the ISP, which must then forward the notice to the relevant customer and retain identification records. The ISP need not “take down” the content, nor does it need to identify the customer unless there is a court order to do so.

Similarly, search engines may make copies of copyright material necessary for technical operation. They are only liable in the case of an injunction against reproduction after notice has been given. Additionally, a website operator is not liable for infringement for providing digital memory to a person to store infringing copies unless that operator knows of a court decision that holds that such person is indeed infringing.

As a result of the CMA, both Canadian copyright owners and users benefit from expanded rights and protections in the digital age. Due to the number and complexity of amendments introduced under the CMA, copyright owners, users and intermediaries in Canada are advised to become familiar with its provisions.

Note: The author would like to acknowledge the contribution of Janice Wu, an articling student with Blake, Cassels & Graydon LLP, to this article.